High Court of Bombay

Bharti and Ors. Vs. Ratan

MANU/MH/2380/2018

08.08.2018

Criminal

It is a matter of discretion as to since which date increase in maintenance can be made effective from

Present is a revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (CrPC) being aggrieved and dissatisfied by the judgment and order passed by the learned Judge of the Family Court, allowing the application but refusing to enhance the maintenance under Section 127 of the CrPC to the extent as claimed by the Petitioners against the Respondent and also being aggrieved by the direction making such increase from the date of the order.

By passage of time, in any economy where there exists some inflation, the cost of living would also increase proportionately. The Court should have taken judicial notice of the fact that, a government servant under suspension is never paid full salary and if at all he is exonerated of the charges and is reinstated, unless there is a specific order refusing to pay him the difference for the period under suspension, he is usually paid that sum. A specific order in that regard has to be passed by the disciplinary authority. Therefore, the burden was on the Respondent to have established all these facts and that having not being done, the learned Judge has clearly erred in holding that, he had not received anything towards arrears.

Sub-section (2) of Section 125 of CrPC, would clearly indicate that the restriction imposed therein is applicable to the orders which are passed under Sub-section (1) of Section 125 of the CrPC whereas, any increase maintenance which is permissible under Section 127 of the CrPC is regulated by a different provision. There is no such restriction placed on the orders passed under Section 127 of the CrPC regarding increase in the maintenance to be made operational only from the date of the order. Therefore, the restriction placed under Sub-section (2) of Section 125 of the CrPC cannot be read into the provision contained in Section 127 of the CrPC.

Sub-section (2) of Section 125 of CrPC enables a Magistrate to make the maintenance payable from the date of the application. Therefore, it is imperative on the part of the Magistrate to record reasons in either case, when he directs operation of the order from the date of the application and even when he restricts it to the date of the order.

As is laid down in the case of Suman Narayan Niphade & Anr. vs. Narayan Sitaram Niphade & Anr, it is a matter of discretion as to since which date the increase in the maintenance can be made effective from. Such a discretion must be exercised judiciously and must be supported by sound reasons. The learned Judge while restricting the increase only from the date of the order has not assigned cogent and relevant reasons. The learned Judge merely mentioned that, the applicants were already receiving the maintenance. Last increase in maintenance was awarded to the applicants in the year 2010, when the Respondent was under suspension and was not getting the full pay. Subsequently, he was re-insisted in the year 2014 and since thereafter he started getting full pay. It would certainly cause serious prejudice to the applicants, if they are not allowed to reap benefit of such increase in the salary of the Respondent from the date of the application. The learned Judge has not assigned cogent and relevant reasons for not making the increase effective from the date of the application.

The observations of the learned Judge of the Family Court restricting the increase to Rs. 2,700 per month only and its operation to the date of the order is clearly perverse, arbitrary and capricious which has resulted in miscarriage of justice and needs to be corrected under the revisional jurisdiction of this Court. The Revision is allowed.

Tags : Maintenance Enhancement Discretion

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